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Gift

GIFT

A voluntary transfer of property or of a property interest from one individual to another, made gratuitously to the recipient. The individual who makes the gift is known as the donor, and the individual to whom the gift is made is called the donee.

If a gratuitous transfer of property is to be effective at some future date, it constitutes a mere promise to make a gift that is unenforceable due to lack of consideration. A present gift of a future interest is, however, valid.

Rules of Gift-Giving

Three elements are essential in determining whether or not a gift has been made: delivery, donative intent, and acceptance by the donee. Even when such elements are present, however, courts will set aside an otherwise valid gift if the circumstances suggest that the donor was, in actuality, defrauded by the donee, coerced to make the gift, or strongly influenced in an unfair manner. In general, however, the law favors enforcing gifts since every individual has the right to dispose of personal property as he or she chooses.

Delivery Delivery of a gift is complete when it is made directly to the donee, or to a third party on the donee's behalf. In the event that the third person is the donor's agent, bailee, or trustee, delivery is complete only when such person actually hands the property over to the donee.

A delivery may be actual, implied, or symbolic, provided some affirmative act takes place. If, for example, a man wishes to give his grandson a horse, an actual delivery might take place when the donor hires someone to bring the horse to the grandson's farm. Similarly, the symbolic delivery of a car as a gift can take place when the donor hands the keys over to the donee.

Delivery can only occur when the donor surrenders control of the property. For example, an individual who expresses the desire to make a gift of a car to another but continues to drive the car whenever he or she wishes has not surrendered control of the car.

A majority of states are practical about the requirement of a delivery. Where the donor and the donee reside in the same house, it ordinarily is not required that the gift be removed from the house to establish a delivery. If the donee has possession of the property at the time that the donor also gives the person ownership, there is no need to pass the property back and forth in order to make a legal delivery. Proof that the donor relinquished all claim to the gift and recognized the donee's right to exercise control over it is generally adequate to indicate that a gift was made.

In instances where delivery cannot be made to the donee, as when the person is out of the country at the time, delivery can be made to someone else who agrees to accept the property for the donee. If the individual accepting delivery is employed by the donor, however, the court will make the assumption that the donor has not rendered control of the property and that delivery has not actually been made. The individual accepting delivery must be holding the property for the donee and not for the donor.

In situations where the donee does not have legal capacity to accept delivery, such delivery can be made to an individual who will hold it for him or her. This might, for example, occur in the case of an infant.

Donative Intent Donative intent to make a gift is essentially determined by the donor's words, but the courts also consider the surrounding circumstances, the relationship of the parties, the size of the gift in relation to the amount of the donor's property as a whole, and the behavior of the donor toward the property subsequent to the purported gift.

The donor must have the legal capacity to make a gift. For example, infants or individuals judged to be unable to attend to their own affairs have a legal disability to make a gift.

In addition, an intent to make a gift must actually exist. For example, a landlord who rents a house to a tenant does not have the intent to give such premises to the tenant, even though the tenant takes possession for an extended period of time. Similarly, a gift to the wrong person will not take effect. If an individual mistakenly gives gold jewelry to an imposter who is believed to be a niece, the gift is invalid because there was no intention to benefit anyone but the niece.

The intent must be present at the time the gift is made. For example, if one person promises to give a house to an artist "someday," the promise is unenforceable because there is no intent to make an effective gift at the time the promise is made. The mere expectation that something will someday be given is not legally adequate to create a gift.

Acceptance The final requirement for a valid gift is acceptance, which means that the donee unconditionally agrees to take the gift. It is necessary for the donee to agree at the same time the delivery is made. The gift can, however, be revoked at any time prior to acceptance.

A court ordinarily makes the assumption that a gift has been accepted if the gift is beneficial, or unless some event has occurred to indicate that it is not.

Types of Gifts

The two principal categories of gifts are inter vivos gifts and causa mortis gifts.

Inter vivos gifts Inter vivos is Latin for "between the living" or "from one living person to another." A gift inter vivos is one that is perfected and takes effect during the lifetime of the donor and donee and that is irrevocable when made. It is a voluntary transfer of property, at no cost to the donee, during the normal course of the donor's life.

A gift inter vivos differs from a sale, a loan, or barter since something is given in exchange for the benefit in each of such transfers. Whether the value given is a money price, a percentage interest or an equivalent item of property, or a promise to repay, the element of exchange makes such transfers something other than a gift.

There are a number of special types of inter vivos gifts. Forgiveness of a debt is a gift of the amount of money owed, and delivery can be accomplished by destroying the promissory note signed by the debtor and handing it over to him or her. A share of stock in a corporation may ordinarily be given to someone else by having ownership transferred to the person on the books of the corporation or by having a new stock certificate issued in the person's name. A life insurance policy can generally be given to someone by delivering the policy, but it is more expedient to express in writing that all interest in the policy is assigned, or transferred, to the donee and to notify the insurance company to that effect. Certain states require these formalities since insurance is strictly regulated by state law. Gifts of land can only be made by written transfer.

A donor can limit an inter vivos gift in certain ways. For example, he or she might give someone a life estate in his or her property. When the donee dies, the property reverts to the donor. A donor cannot place other restrictions on a gift if the restrictions would operate to make the gift invalid. If, for example, the donor reserves the power to revoke a gift, there is no gift at all.

Causa Mortis Gifts A gift causa mortis (Latin for "in contemplation of approaching death") is one that is made in anticipation of imminent death. This type of gift takes effect upon the death of the donor from the expected disease or illness. In the event that the donor recovers from the peril, the gift is automatically revoked. Gifts causa mortis only apply to personal property.

A donor who is approaching death might make a gift by putting his or her intention in writing. This procedure is likely to be followed, when, for example, the donee is in another state, and personal delivery is thereby impractical. The delivery requirement is frequently relaxed when a causa mortis gift is involved, since a donor is less likely to be able to make an actual delivery as his or her death approaches. A symbolic delivery is frequently sufficient to show that a gift was made, provided at least some effort to make a delivery is exercised. The overt act aids a court in its determination as to whether a delivery has been made.

The difference between a gift causa mortis and a testamentary gift made by will is that a will transfers ownership subsequent to the death of the donor, but a gift causa mortis takes effect immediately. In most states, the donee becomes legal owner of the gift as soon as it is given, subject only to the condition that the gift must be returned if the donor does not actually die.

The requirements of a causa mortis gift are essentially the same as a gift inter vivos. In addition, such a gift must be made with a view toward the donor's death, the donor must die of the ailment, and there must be a delivery of the gift.

Gifts causa mortis are usually made in a very informal manner and are frequently made because dying people want to be certain that their dearest possessions go to someone they choose.

A donor who is approaching death might make a gift by putting his or her intention in writing. This procedure is likely to be followed, when, for example, the donee is in another state, and personal delivery is thereby impractical. The courts only permit the donee to keep the gift if the donor clearly intended the gift to take effect at the time it was made. If the gift is made in writing in a will and is intended to become effective only after the donor dies, the gift is a testamentary one. The law in each jurisdiction is very strict about the features that make a will valid. One requirement, for example, is that the will must be signed by witnesses. If the donor writes down that he or she is making a gift, but the writing is neither an immediate gift nor a witnessed will, the donee cannot keep the gift.

The delivery requirement is frequently relaxed when a causa mortis gift is involved, since a donor is less likely to be able to make an actual delivery as his or her death approaches. A symbolic delivery is frequently sufficient to show that a gift was made, provided at least some effort to make a delivery is exercised. The overt act aids a court in its determination as to whether a delivery has been made.

A gift causa mortis is only effective if the donor actually dies. It is not necessary that the donor die immediately, but the person must die of a condition or danger that existed when the gift was made and without an intervening recovery. The donee becomes legal owner of the property in most states from the time the gift is made. The person must, however, later return the gift if the donor does not actually die. If the donor changes his or her mind and revokes the gift, or recovers from the particular illness or physical injury, the gift is invalid. A donor also has the right to require that debts or funeral expenses be paid out of the value of the gift.

further readings

Bove, Alexander A. 2000. The Complete Book of Wills, Estates, and Trusts. New York: Holt, Henry.

"Landlord's Estate May Include Tenant's Improvements to Lease Property." 2002. Tax Return Preparer's Letter (July).

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Gift

GIFT

Gifts and money are unconsciously associated with anal eroticism. In "On Transformations of Instinct as Exemplified in Anal Erotism" (1916-1917e), Sigmund Freud writes, "It is probable that the first meaning which a child's interest in faeces develops is that of 'gift' rather than 'gold' or 'money.' . . . Since his faeces are his first gift, the child easily transfers his interest from that substance to the new one which he comes across as the most valuable gift in life. Those who question this derivation of gifts should consider their experience of psycho-analytic treatment, study the gifts they receive as doctors from their patients, and watch the storms of transference which a gift from them can rouse in their patients" (pp. 130-131). The gift is meaningful because of its connection to the libido and eroticism. Freud's investigation led him to the discovery of the unconscious link with defecation and its relation to treasure hunting.

Karl Abraham (1916) examined the connection between excessive giving and anxiety. He investigated (1919) the transference meaning of the associationsoccasionally excessivepresented by the patient to the psychoanalyst as a gift. This attitude is an expression of narcissism and is characterized by its view of analysis as something governed by the pleasure principle.

What happens to the instinctual impulses of anal eroticism after the genital organization has been established? Freud in "On Transformations of Instinct as Exemplified in Anal Eroticism" (1916-17e) responds with the idea of the transformation of instinct. In this schema, gift equals excrement according to the symbolic language of the dream and daily life.

The first gift is excrement, a part of the infant's body he gives up only upon the mother's insistence and through which he manifests his love for her. Defecation and its relation to the object thus become the first opportunity for the infant to choose between bodily pleasure (narcissism) and object love (sacrifice).

Later in life the interest in excrement is transferred to an interest in gifts and money. The concepts of excrement, infant, and penis are poorly distinguished and are frequently treated as if they were equivalent; they can easily be substituted for one another. Freud perceived the identity of the infant with excrement in the linguistic expression: "to give a child." Similarly, Freud wrote in the "Wolf Man" (1918b), "By way of this detour demonstrating a common point of departure in their significance as gifts, money can now attract to itself the meaning of children, and in this way take over the expression of feminine (homosexual) satisfaction."

Freud views the transference relation of certain patients as a vague recollection of this problematic, arising whenever the patient wants to interrupt the unfinished treatment and place himself in a situation of disdain that originates in the outside world. The patient then replaces the urgent desire to have a child with promises of significant gifts, most often as unrealistic as the object of his past desire. This concept is developed in Beyond the Pleasure Principle (1920g).

Melanie Klein (1932-1975) demonstrated the importance of the theme of poison gifts as a source of depression and melancholy toward the object. "For the child gifts attenuate his guilt by symbolizing the free gift of what he wanted to obtain by sadistic means." In this same article, Klein clarifies the role of ambivalence and sees it as a step forward compared to archaic mechanisms. The gift provides access; it is a preliminary form of sublimation within the compulsions of reparation and restitution associated with obsessive behavior.

Dominique J. Arnoux

See also: Anality; Money in psychoanalytic treatment

Bibliography

Abraham, Karl. (1966). Examen de l'étape prégénitale la plus précoce du développement de la libido. Complete works, vol. 2, 1915-1925. (pp. 231-254) (I. Barande, Trans.) Paris: Payot. (Original work published 1916)

. (1979). A particular form of neurotic resistance against the psycho-analytic method. (pp. 303-311) In Selected papers of Karl Abraham, M.D. (Douglas Bryan and Alix Strachey, Trans.) New York: Brunner/Mazel. (Original work published 1927)

Freud, Sigmund. (1908b). Character and anal erotism. SE,9: 169-175.

. (1916-17e). On transformations of instinct as exemplified in anal erotism. SE, 17: 127-133.

. (1918b). From the history of an infantile neurosis. SE, 17: 1-122.

. (1920g). Beyond the pleasure principle. SE, 18: 1-64.

Klein, Melanie. (1975). The psycho-analysis of children. (Alix Strachey, Trans.) London: Hogarth Press. (Original work published 1932)

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gift

gift, in law, voluntary transfer of property from one person to another without any compensation for it and without any obligation of an agreement or contract. The one who gives is the donor; the one who receives the gift, the donee. There are two main classes of gifts, gifts inter vivos and gifts causa mortis. The former is an outright transfer of property, the ordinary type of gift. A gift causa mortis, on the other hand, resembles a legacy, or bequest made under a will. It is a gift made by a person in expectation of imminent death and is not complete until the donor dies. The donor in such a situation may make a gift by delivering the goods or note or whatever is the subject of the gift to the donee, but the donor retains full title to the gift and may revoke it at any time before his death. The ordinary gift inter vivos is complete and unconditional as soon as the delivery of the gift is made. The nature of the gift is of considerable importance in taxation. In both types of gifts, it is essential that there be an actual and full delivery of the article given as well as donative intent on the part of the donor. The delivery may be by handing to the donee or by giving it to some other person for the donee, but in all cases the delivery must be such as to take the property given out of the hands and the control of the donor. Commonly gifts are spoken of as involving both real estate and personal property. The law does not recognize a true gift of real estate, for real estate can be transferred only by deed or will. Gifts in law are only of personal property. A promise to deliver a gift in the future, or a promise to make a gift, unless under seal or made under very unusual circumstances, cannot be legally enforced. A gift should be distinguished from a barter or exchange, as the element of consideration (payment of some sort) necessary for the latter two is not present in a gift.

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gift

gift / gift/ • n. 1. a thing given willingly to someone without payment; a present: a Christmas gift| [as adj.] a gift shop. ∎  an act of giving something as a present: his mother's gift of a pen. ∎ inf. a very easy task or unmissable opportunity: that touchdown was an absolute gift. 2. a natural ability or talent: he has a gift for comedy. • v. [tr.] give (something) as a gift, esp. formally or as a donation or bequest: the company gifted 2,999 shares to a charity. ∎  present (someone) with a gift or gifts: the director gifted her with a heart-shaped brooch. ∎  (gift someone with) endow someone with (something): she was gifted with a powerful clairvoyance. PHRASES: the gift of tonguessee tongue. look a gift horse in the mouth find fault with something that has been received as a gift or favor.

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gift

gift in the gift of (of a Church living or official appointment) in the power of (someone) to award.
never look a gift horse in the mouth warning against questioning the quality or use of a lucky chance or gift; referring to the fact that it is by a horse's teeth that its age is judged. The saying is recorded from the early 16th century.

See also fear the Greeks bearing gifts, Greek gift, seven gifts of the holy spirit, the gift of tongues

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ELIZABETH KNOWLES. "gift." The Oxford Dictionary of Phrase and Fable. 2006. Encyclopedia.com. 30 May. 2016 <http://www.encyclopedia.com>.

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gift

gift XIII. — ON. gipt, corr. to OE. ġift payment for a wife, pl. wedding, OS. sundargift privilege, MDu. gift(e) (Du. gift fem. gift, n. usu. gif poison), OHG. gift fem. gift, poison (G. gift fem. gift, n. poison), Goth. fragifts espousal :- Gmc. *ʒeftiz, f. *ʒeb-, base of GIVE; see -T1.

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T. F. HOAD. "gift." The Concise Oxford Dictionary of English Etymology. 1996. Encyclopedia.com. 30 May. 2016 <http://www.encyclopedia.com>.

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GIFT

GIFT / gift/ • n. Med. gamete intrafallopian transfer, a technique for assisting conception by introducing mixed ova and sperm into a Fallopian tube.

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GIFT

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"GIFT." A Dictionary of Nursing. 2008. Encyclopedia.com. 30 May. 2016 <http://www.encyclopedia.com>.

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gift

gift •Taft •abaft, aft, craft, daft, draft, draught, engraft, graft, haft, kraft, raft, shaft, understaffed, unstaffed, waft •backdraft • handcraft • aircraft •stagecraft • spacecraft • statecraft •needlecraft • priestcraft • witchcraft •kingcraft • handicraft • woodcraft •Wollstonecraft • bushcraft •watercraft • hovercraft • crankshaft •camshaft • layshaft • driveshaft •turboshaft • countershaft •bereft, cleft, deft, eft, heft, klepht, left, reft, theft, weft •adrift, drift, gift, grift, lift, rift, shift, shrift, sift, squiffed, swift, thrift, uplift •airlift, chairlift, stairlift •facelift • skilift • shoplift • Festschrift •spendthrift • spindrift • snowdrift •makeshift • downshift • upshift •aloft, croft, loft, oft, soft, toft •hayloft • Ashcroft • Cockcroft •undercroft • Lowestoft •tuft, unstuffed •Delft

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GIFT

GIFT (gɪft) Med. gamete intrafallopian transfer (for assisting conception)

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FRAN ALEXANDER , PETER BLAIR , JOHN DAINTITH , ALICE GRANDISON , VALERIE ILLINGWORTH , ELIZABETH MARTIN , ANNE STIBBS , JUDY PEARSALL , and SARA TULLOCH. "GIFT." The Oxford Dictionary of Abbreviations. 1998. Encyclopedia.com. 30 May. 2016 <http://www.encyclopedia.com>.

FRAN ALEXANDER , PETER BLAIR , JOHN DAINTITH , ALICE GRANDISON , VALERIE ILLINGWORTH , ELIZABETH MARTIN , ANNE STIBBS , JUDY PEARSALL , and SARA TULLOCH. "GIFT." The Oxford Dictionary of Abbreviations. 1998. Encyclopedia.com. (May 30, 2016). http://www.encyclopedia.com/doc/1O25-GIFT.html

FRAN ALEXANDER , PETER BLAIR , JOHN DAINTITH , ALICE GRANDISON , VALERIE ILLINGWORTH , ELIZABETH MARTIN , ANNE STIBBS , JUDY PEARSALL , and SARA TULLOCH. "GIFT." The Oxford Dictionary of Abbreviations. 1998. Retrieved May 30, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1O25-GIFT.html

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